Matter of Zvegintzov v. New York City Tr. Auth. , 144 A.D.3d 934 ( 2016 )

Matter of Zvegintzov v New York City Tr. Auth. (2016 NY Slip Op 07667)

Matter of Zvegintzov v New York City Tr. Auth.

2016 NY Slip Op 07667

Decided on November 16, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 16, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
HECTOR D. LASALLE, JJ.

2015-06080
(Index No. 15072/14)

[*1]In the Matter of Nicholas Zvegintzov, appellant,

v

New York City Transit Authority, respondent.

Seymour W. James, Jr., New York, NY (Robert Newman of counsel), for appellant.

James B. Henly, Brooklyn, NY (Bonnie C. Harper of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority Transit Adjudication Bureau Appeals Board dated June 25, 2014, affirming a decision of a hearing officer dated March 28, 2014, finding that the petitioner entered into the respondent's facilities in violation of 21 NYCRR 1050.4(a) and imposing a fine, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Sweeney, J.), dated April 15, 2015, which granted that branch of the respondent's motion which was, in effect, pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss the petition for failure to state a cause of action, and dismissed the proceeding.

ORDERED that the order and judgment is reversed, on the law, without costs or disbursements, that branch of the respondent's motion which was, in effect, pursuant to CPLR 3211(a)(7)and 7804(f) to dismiss the petition for failure to state a cause of action is denied, the petition is reinstated and granted, the determination dated June 25, 2014, is annulled, and the decision dated March 28, 2014, is vacated.

Under the unique facts and circumstances of this particular case, that branch of the respondent's motion which was, in effect, pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss the petition for failure to state a cause of action should have been denied, the petition should have been granted, the determination dated June 25, 2014, should have been annulled, and the decision dated March 28, 2014, should have been vacated.

LEVENTHAL, J.P., COHEN, MILLER and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court